In The AES Corporation v. Steadfast Ins. Co., the Virginia Supreme Court became the first state supreme court to hold that damages in a global warming suit allegedly arising from the intentional emission of greenhouse gases did not arise from an “occurrence” as that term is defined in the relevant policy. The underlying action was brought by residents of the Inupiat village of Kivalina on the Alaskan coast. In January 2012, in response to a petition from the insured, the Steadfast court vacated its earlier decision and granted rehearing on the “occurrence” issue. On April 20, 2012, the court issued an opinion rejecting the insured’s rehearing bid and again ruled that the damages sought in the Native Village of Kivalina v. ExxonMobil Corp. suit did not arise from a policy-defined “occurrence.”
At the outset of its decision, the court held that, in determining if a complaint alleges an “occurrence,” the dispositive consideration in Virginia is “not whether the action undertaken by the insured was intended, but rather whether the resulting harm is alleged to have been reasonably anticipated or the natural or probable consequence of the insured’s intentional act.” [Emphasis added by the court and further citations omitted.] Continuing, the Steadfast court held that to preclude coverage based on the lack of an “occurrence,” “it must be alleged that the result of an insured’s intentional act was more than a possibility; it must be alleged that the insured subjectively intended or anticipated the result of its intentional act or that objectively, the result was a natural or probable consequence of the intentional act.”
Applying this test to the allegations in the Kivalina complaint, the court held that the insurer had no duty to defend the insured because the “acts as alleged in the complaint were intentional and the consequences of those acts are alleged by Kivalina to be not merely foreseeable, but natural or probable.” Continuing, the Virginia high court held, “[w]here the harmful consequences of an act are alleged to have been not just possible, but the natural or probable consequences of an intentional act, choosing to perform the act deliberately, even if in ignorance of that fact, does not make the resulting injury an ‘accident’ even when the complaint alleges that such action was negligent.” Given these allegations, the Steadfast court concluded that the Kivalina complaint did not allege a policy-defined “occurrence” and, hence, the insurer had no duty to defend.
Because Virginia adheres to the “eight corners” rule, if the allegations set forth a plausible cause of action that may potentially be covered, the carrier must defend. An insurer can only escape this obligation if there is no doubt as to the intentional nature of the harm. Steadfast teaches that, at least in Virginia, where the only allegations in a global warming complaint are that global warming was the natural and probable consequence of intentional emission of greenhouse gases, courts will find the complaint does not allege a policy-defined “occurrence.” Would the outcome have been different if the Kivalina complaint had not alleged that the insured “knew or should have known” of the effect of its intentional releases of greenhouse gas emissions into the atmosphere? Dictum in the Steadfast decision could be read to suggest as much.
Looking ahead, we anticipate that underlying plaintiffs in any future global warming suits may try to finesse the “Steadfast problem” with artful pleading. If they succeed in alleging a covered “occurrence,” the focus of attention would likely shift to other unresolved coverage issues, such as trigger, allocation and whether the pollution exclusion applies in the context of global warming claims.